Citation Nr: 1140922
Decision Date: 11/03/11 Archive Date: 11/16/11
DOCKET NO. 10-13 947 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUES
1. Entitlement to service connection for a low back disorder.
2. Entitlement to service connection for a left shoulder disorder.
REPRESENTATION
Appellant represented by: Oklahoma Department of Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Hannan, Counsel
INTRODUCTION
The Veteran appellant had active service in the United States Army from September 1997 to January 2001.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the above Regional Office (RO) of the Department of Veterans Affairs (VA) that, in part, denied the appellant's claims of entitlement to service connection for low back and left shoulder disorders.
In July 2011, the Veteran testified at a videoconference hearing at the RO, before the undersigned Veterans Law Judge. The associated transcript is included in the claims file.
In connection with that videoconference hearing, the appellant submitted additional evidence concerning his left shoulder claim. This evidence consisted of two written statements from fellow service members relating to an in-service left shoulder injury. The appellant has not submitted a written waiver of initial review of that evidence by the RO. See 38 C.F.R. § 20.1304. However, as the left shoulder issue is being remanded, the RO will be able to review this evidence.
The issue of entitlement to a left shoulder disorder is addressed in the REMAND portion of the decision below and that issue is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
In a written statement dated July 28, 2011, and prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to service connection for a low back disorder.
CONCLUSION OF LAW
The criteria for withdrawal by the Veteran of his Substantive Appeal on the issue of entitlement to service connection for a low back disorder have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(c).
The Veteran filed a substantive appeal (VA Form 9) in March 2010 with respect to his claims of entitlement to service connection for a low back disorder and a left shoulder disorder. The Veteran subsequently submitted a written statement (dated July 28, 2011) in which he stated that he was withdrawing his appeal as to the low back disorder. Specifically, he stated that he was withdrawing "all issues on appeal except service connection for left shoulder condition." As the Veteran has withdrawn his appeal as to the issue of service connection for a low back disorder, there remain no allegations of error of fact or law for appellate consideration on that low back claim. Accordingly, the Board does not have jurisdiction to review the appeal as to the appellant's claim for service connection for a low back disorder. Therefore, the low back service connection issue is dismissed, without prejudice.
ORDER
The appeal as to the Veteran's claim of entitlement to service connection for a low back disorder is dismissed.
REMAND
A determination has been made that additional development is necessary with respect to the issue on appeal. Accordingly, further appellate consideration will be deferred and this case remanded to the AMC/RO for action as described below.
In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131. The resolution of the issues on appeal must be considered on the basis of the places, types and circumstances of a veteran's service as shown by service records, the official history of each organization in which the claimant served, his medical records and all pertinent medical and lay evidence. Determinations relative to service connection will be based on review of the entire evidence of record. 38 C.F.R. § 3.303(a).
In cases where a veteran's service medical records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The heightened duty to assist the veteran in developing facts pertinent to his claims in a case where service medical records are presumed destroyed includes the obligation to search for alternative medical records. Moore v. Derwinski, 1 Vet. App. 401 (1991).
The appellant asserts that he injured his left shoulder in November 1999, while he was on active duty at Fort Drum in upstate New York. In this case, none of the Veteran's service medical treatment records from the pertinent period of active service (September 1997 to January 2001) are included in the claims file. In July 2009, the RO made a formal finding of the unavailability of the Veteran's service records. It appears that the RO only made one attempt to obtain these active duty service medical treatment records and it is unclear whether the RO has attempted to obtain other alternative records. This should be rectified on remand.
Where the claimant's service medical records have been destroyed or lost, the Board is under a duty to advise the claimant to obtain other forms of evidence, such as lay testimony. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The VA Adjudication Procedure Manual provides that alternate sources of evidence may be utilized in cases where the service medical records are missing. A non-exhaustive list of documents that may be substituted for service medical records in this case includes: statements from service medical personnel, "buddy" certificates or affidavits, employment physical examinations, medical evidence from hospitals, clinics, and private physicians where a veteran may have sought treatment, especially soon after service discharge, letters written during service, photographs taken during service, pharmacy prescription records, and insurance examinations. VA Adjudication Procedure Manual, Manual M21-1MR, part III, subpart iii, chapter 2, section E, paragraph 27.b. The Veteran should be afforded the opportunity to provide such documentation.
The appellant testified during his July 2011 Board videoconference hearing that he received treatment for his left shoulder at a VA facility within one year of his separation from active duty. He further testified that he was in a motor vehicle accident in 2001, and that he received medical treatment for his left shoulder in connection with that accident. However, none of the associated treatment records have been included in the claims file. VA is therefore on notice of records that may be probative for the case. See Robinette v. Brown, 8 Vet. App. 69 (1995). On remand, all of these records, VA and private, should be obtained and associated with the claims file.
The appellant has not been afforded a VA orthopedic examination for his left shoulder. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).
With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Here, there is lay evidence of record to indicate that the appellant displayed symptoms possibly related to the currently claimed left shoulder disability while he was in service and that these symptoms have continued to the present. The appellant has presented his own written statements and testimony to that effect, as well as third party statements that indicate he was treated in service for a left shoulder injury. In light of the existence of credible evidence of an in-service incident and continuity of symptoms capable of lay observation, and that the appellant may have had manifestations of the claimed left shoulder disorder in service or within one year of service, the Board finds that the duty to assist in this case requires that an orthopedic evaluation should be obtained on remand.
Thus, further development of the medical evidence is necessary, and adjudication on this basis is therefore indicated. These considerations require the gathering of medical records and further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). The United States Court of Appeals for Veterans Claims (Court) has stated that the Board's task is to make findings based on evidence of record - not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Thus, where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993).
Therefore, to ensure full compliance with due process requirements, this case is REMANDED to the AMC/RO for the following:
1. Ensure that all notification and development action required by statutes, regulations, and any applicable legal precedents has been completed.
2. Take all appropriate steps to secure all the service treatment records for the Veteran or alternative records from any appropriate source, including the Veteran and Fort Drum medical facilities, in accordance with VA Adjudication Procedure Manual, Manual M21-1MR, part III, subpart iii, chapter 2, section E. The Veteran should be afforded the opportunity to provide the documentation described therein. Any and all records obtained should be associated with the claims file. If there are no such records, the AMC/RO should so specifically find and the documentation used in making that determination should be set forth in the claims file.
3. Contact the appellant to obtain the names and addresses of all VA or other government health care providers and treatment centers where he has been treated for any left shoulder condition since service. After securing the necessary release(s), obtain those records that have not been previously secured. In particular, all VA inpatient and outpatient treatment records from 2001 to the present should be obtained.
4. Contact the appellant to identify the claim number and the insurance company that handled the claim related to his 2001 motor vehicle accident (MVA) and to obtain the names and addresses of all private health care providers and treatment centers where he was treated for any left shoulder condition related to that 2001 MVA. After securing the necessary release(s), obtain those records.
5. To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims file should contain documentation of the attempts made. The appellant and his representative should also be informed of the negative results and be given opportunity to secure the records.
6. After completing any additional notification and/or development action deemed warranted by the record, schedule the appellant for a VA evaluation by an appropriately qualified physician, such as an orthopedist or orthopedic surgeon, to determine the nature, onset date and etiology of any current left shoulder pathology, and whether it is linked to the Veteran's active service. All indicated studies, such as radiographic examination of the appellant's left shoulder, should be conducted.
The examiner must review the claims file and note that this review was accomplished in his/her report. After reviewing the claims file (including all imaging reports) and examining the appellant, the examiner should offer opinions as to whether the appellant's current left shoulder disorder(s) is/are related to his active military service. (The orthopedist is requested to provide an opinion based on record review alone if the appellant fails to report for the examination). The examiner should respond to the following specific questions and provide a full statement of the basis for the conclusions reached:
i. What left shoulder injury or pathology is documented in the medical record? Does the appellant currently have any chronic left shoulder pathology? If so, list each diagnosis.
ii. On the basis of the clinical record and the known development characteristics of the diagnosed left shoulder disorder(s), can it be concluded that any such currently diagnosed pathology existed at the time of appellant's separation from service in January 2001? Discuss the pertinent imaging results of record, as well as the appellant's description of his in-service injury and related problems with forward and overhand motions and his post-service MVA. Is the currently demonstrated pathology consistent with any incident described by the appellant?
iii. When is the first documented record of the existence of a left shoulder injury for the appellant? When is the first documented record of the existence of left shoulder arthritis, if any?
iv. Is the appellant's currently claimed left shoulder disorder etiologically related to any incident of service, or is the claimed pathology more likely due to some other cause or causes, including any post-service MVA?
Note: In assessing the relative likelihood as to origin and etiology of the left shoulder pathology specified above, the examiner should apply the standard of whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the claimed disorder is causally or etiologically related to the Veteran's active service, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report.
Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.
Note: If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's left shoulder pathology. See Jones v. Shinseki, 23 Vet. App. 383 (2010).
7. Upon receipt of the VA examining physician's report, conduct a review to verify that all requested opinions have been offered. If information is deemed lacking, the AMC/RO must refer the report to the VA examining physician for corrections or additions. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the examination report as inadequate for evaluation purposes.).
8. After completing any additional notification and/or development action deemed warranted by the record, review the record again, including any newly acquired evidence, and re-adjudicate the issue on appeal. Ensure that all applicable theories of service connection are considered.
9. If the benefit sought on appeal remains denied, the appellant and his representative should be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
The appellant is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655.
Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified.
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs